On Aug. 3, leave to appeal was granted by the Ontario Court of Appeal in Dennis v. Ontario Lottery and Gaming Corp.
Between December 1999 and February 2005, more than 10,000 people voluntarily signed self-exclusion forms, asking the lottery corporation to bar them from its gaming establishments.
Gamblers who sign the forms have their photo taken and it is kept on file so casino staff can identify them. People may be charged with trespassing if they are caught re-entering a casino during the time they have chosen to be excluded.
The lawsuit alleges the plaintiffs suffered losses after OLG failed to prevent them from entering gaming sites and gambling.
However, OLG places the responsibility to stay away from gaming sites on the individual. It has said the self-exclusion policy isn’t a policing program.
Prior to 2005, the self-exclusion forms included wording indicating OLG would not be liable if it failed to prevent anyone from entering its casinos.
Wording on the form included the following: “I understand that my failure to comply with the voluntary ban may mean that I will be apprehended for trespassing and dealt with according to law. I release and forever discharge the OLGC . . . from any and all liability, causes of action, claims and demands whatsoever in the event that I fail to comply with this voluntary ban.”
“The government can’t say there’s responsible gaming but when they get sued over a false self-exclusion program say ‘read the fine print,’” says Jerome Morse, of Adair Morse LLP, who is acting for plaintiffs Peter Dennis and Zubin Noble and aims to represent the more than 10,000 individuals who signed the self-exclusion forms from 1999 to 2005.
The forms that have been in place since 2005 include a clause that absolves the gaming regulator of any responsibility if someone who signs a form continues gambling at a government-owned site.
In a decision released in 2010 in Dennis v. OLG, Ontario Superior Court Justice Maurice Cullity ruled against the class action proceeding.
At the time, Cullity didn’t dismiss based on the merits of the plaintiff’s claims against OLG, but said the gamblers’ claims were based on their own personal circumstances — that the “evidence does not support that all class members were pathological problem gamblers” — so they would have to pursue individual lawsuits.
Cullity noted in the decision that nine individual actions had been brought against OLG by self-excluded persons and they had reportedly settled for an average payment of $167,000 per claim.
“The essence of Justice Cullity’s decision was he felt there had to be individual proof of vulnerability to establish liability, so therefore you were doomed to individual trials to get the answer to the question whether there would be liability, therefore the issues would become overwhelmed by that analysis,” says Morse.
Morse points to several recent decisions where cases have been certified based on a group of individuals having a similar experience, such as the unpaid overtime case in Fresco v. Canadian Imperial Bank of Commerce which was issued in June.
“There is an abundance of cases that have been served by Justice Cullity himself such as in the medical-device cases where a breach of duty is determined for one and all, and individual trials will be required to find out who amongst the people who had the product were hurt by it owing to the defects that were identified in the common issues trial,” says Morse.
“The central argument is there is a contract and there’s a breach of contract. Any exclusionary language in that contract either doesn’t capture what occurred here or is void for public policy,” says Morse. “It’s also one of those cases where there is therefore a duty of care — because you have an ability to recognize these people who are at risk of gambling.”